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Treason, No. 1 / No Treason, No. 2

No Treason, No. 2

By rbarnett - Posted on 04 August
2009

NO TREASON.

No. II.

_____________

The Constitution.

_____________

BY LYSANDER SPOONER

_____________

BOSTON:

PUBLISHED BY THE AUTHOR,

No. 14 Bromfield Street.

1867.

___________________________________________________

Entered according to Act of congress, in the year 1867,

By LYSANDER SPOONER,

in the Clerk's office of the District Court of the United States, for the
District

of Massachusetts.

___________________________________________________

[*3]

NO TREASON.

NO. II

I.

The Constitution says:

"We, the people of the United States, in order to form a more perfect union,
establish justice, insure domestic tranquility, provide for the common defence,
promote the general welfare, and secure the blessings of liberty to ourselves
and our posterity do ordain and establish this Constitution for the United
States of America."

The meaning of this is simply We, the people of the United States, acting
freely and voluntarily as individuals, consent and agree that we will cooperate
with each other in sustaining such a government as is provided for in this
Constitution.

The necessity for the consent of "the people" is implied in this declaration.
The whole authority of the Constitution rests upon it. If they did not consent,
it was of no validity. Of course it had no validity, except as between those who
actually consented. No one's consent could be presumed against him, without his
actual consent being given, any more than in the case of any other contract to
pay money, or render service. And to make it binding upon any one, his
signature, or other positive evidence of consent, was as necessary as in the
case of any other-contract. If the instrument meant to say that any of "the
people of the United States" would be bound by it, who [*4] did not consent, it
was a usurpation and a lie. The most that can be inferred from the form, "We,
the people," is, that the instrument offered membership to all "the people of
the United States;" leaving it for them to accept or refuse it, at their
pleasure.

The agreement is a simple one, like any other agreement. It is the same as
one that should say: We, the people of the town of A-----, agree to sustain a
church, a school, a hospital, or a theatre, for ourselves and our children.

Such an agreement clearly could have no validity, except as between those who
actually consented to it. If a portion only of "the people of the town of
A-----," should assent to this contract, and should then proceed to compel
contributions of money or service from those who had not consented, they would
be mere robbers; and would deserve to be treated as such.

Neither the conduct nor the rights of these signers would be improved at all
by their saying to the dissenters: We offer you equal rights with ourselves, in
the benefits of the church, school, hospital, or theatre, which we propose to
establish, and equal voice in the control of it. It would be a sufficient answer
for the others to say: We want no share in the benefits, and no voice in the
control, of your institution; and will do nothing to support it.

The number who actually consented to the Constitution of the United States,
at the first, was very small. Considered as the act of the whole people, the
adoption of the Constitution was the merest farce and imposture, binding upon
nobody.

The women, children, and blacks, of course, were not asked to give their
consent. In addition to this, there were, in nearly or quite all the States,
property qualifications that excluded probable one half, two thirds, or perhaps
even three fourths, of the white male adults from the right of suffrage. And of
those who were allowed that right, we know not how many exercised it.

Furthermore, those who originally agreed to the Constitution, could thereby
bind nobody that should come after them. They could contract for nobody but
themselves. They had no more [*5] natural right or power to make political
contracts, binding upon succeeding generations, than they had to make marriage
or business contracts binding upon them.

Still further. Even those who actually voted for the adoption of the
Constitution, did not pledge their faith for any specific time; since no
specific time was named, in the Constitution, during which the association
should continue. It was, therefore, merely an association during pleasure; even
as between the original parties to it. Still less, if possible, has it been any
thing more than a merely voluntary association, during pleasure, between the
succeeding generations, who have never gone through, as their fathers did, with
so much even as any outward formality of adopting it, or of pledging their faith
to support it. Such portions of them as pleased, and as the States permitted to
vote, have only done enough, by voting and paying taxes, (and unlawfully and
tyrannically extorting taxes from others,) to keep the government in operation
for the time being. And this, in the view of the Constitution, they have done
voluntarily, and because it was for their interest, or pleasure, and not because
they were under any pledge or obligation to do it. Any one man, or any number of
men, have had a perfect right, at any time, to refuse his or their further
support; and nobody could rightfully object to his or their withdrawal.

There is no escape from these conclusions, if we say that the adoption of the
Constitution was the act of the people, as individuals, and not of the States,
as States. On the other hand, if we say that the adoption was the act of the
States, as States, it necessarily follows that they had the right to secede at
pleasure, inasmuch as they engaged for no specific time.

The consent, therefore, that has been given, whether by individuals, or by
the States, has been, at most, only a consent for the time being; not an
engagement for the future. In truth, in the case of individuals, their actual
voting is not to be taken as proof of consent, even for the time being. On the
contrary, it is to be considered that, without his consent having ever been
asked, a [*6] man finds himself environed by a government that he cannot resist;
a government that forces him to pay money, render service, and forego the
exercise of many of his natural rights, under peril of weighty punishments. He
sees, too, that other men practise this tyranny over him by the use of the
ballot. He sees further that, if he will but use the ballot himself, he has some
chance of relieving himself from this tyranny of others, by subjecting them to
his own. In short, be finds himself, without his consent, so situated that, if
he use the ballot, he may become a master; if he does not use it, he must become
a slave. And he has no other alternative than these two. In self-defence, he
attempts the former. His case is analogous to that of a man who has been forced
into battle, where he must either kill others, or be killed himself. Because, to
save his own life in battle, a man attempts to take the lives of his opponents,
it is not to be inferred that the battle is one of his own choosing. Neither in
contests with the ballot --- which is a mere substitute for a bullet ---
because, as his only chance of self-preservation, a man uses a ballot, is it to
be inferred that the contest is one into which he voluntarily entered; that he
voluntarily set up all his own natural rights, as a stake against those of
others, to be lost or won by the mere power of numbers. On the contrary, it is
to be considered that, in an exigency, into which he had been forced by others,
and in which no other means of self-defence offered, he, as a matter of
necessity, used the only one that was left to him.

Doubtless the most miserable of men, under the most oppressive government in
the world, if allowed the ballot, would use it, if they could see any chance of
thereby ameliorating their condition. But it would not therefore be a legitimate
inference that the government itself, that crushes them, was one which they had
voluntarily set up, or ever consented to.

Therefore a man's voting under the Constitution of the United States, is not
to be taken as evidence that he ever freely assented to the Constitution, even
for the time being. Consequently we have no proof that any very large portion,
even of the actual [*7] voters of the United States, ever really and voluntarily
consented to the Constitution, even for the time being. Nor can we ever have
such proof, until every man is left perfectly free to consent, or not, without
thereby subjecting himself or his property to injury or trespass from
others.

II.

The Constitution says:

"Treason against the United States shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and comfort."

This is the only definition of treason given by the Constitution, and it is
to be interpreted, like all other criminal laws, in the sense most favorable to
liberty and justice. Consequently the treason here spoken of, must be held to be
treason in fact, and not merely something that may have been falsely called by
that name.

To determine, then, what is treason in fact, we are not to look to the codes
of Kings, and Czars, and Kaisers, who maintain their power by force and fraud;
who contemptuously call mankind their "subjects;" who claim to have a special
license from heaven to rule on earth; who teach that it is a religious duty of
mankind to obey them; who bribe a servile and corrupt priest-hood to impress
these ideas upon the ignorant and superstitious; who spurn the idea that their
authority is derived from, or dependent at all upon, the consent of their
people; and who attempt to defame, by the false epithet of traitors, all who
assert their own rights, and the rights of their fellow men, against such
usurpations.

Instead of regarding this false and calumnious meaning of the word treason,
we are to look at its true and legitimate meaning in our mother tongue; at its
use in common life; and at what would necessarily be its true meaning in any
other contracts, or articles [*8] of association, which men might voluntarily
enter into with each other.

The true and legitimate meaning of the word treason, then, necessarily
implies treachery, deceit, breach of faith. Without these, there can be no
treason. A traitor is a betrayer --- one who practices injury, while professing
friendship. Benedict Arnold was a traitor, solely because, while professing
friendship for the American cause, he attempted to injure it. An open enemy,
however criminal in other respects, is no traitor.

Neither does a man, who has once been my friend, become a traitor by becoming
an enemy, if before doing me an injury, he gives me fair warning that he has
become an enemy; and if he makes no unfair use of any advantage which my
confidence, in the time of our friendship, had placed in his power.

For example, our fathers --- even if we were to admit them to have been wrong
in other respects --- certainly were not traitors in fact, after the fourth of
July, 1776; since on that day they gave notice to the King of Great Britain that
they repudiated his authority, and should wage war against him. And they made no
unfair use of any advantages which his confidence had previously placed in their
power.

It cannot be denied that, in the late war, the Southern people proved
themselves to be open and avowed enemies, and not treacherous friends. It cannot
be denied that they gave us fair warning that they would no longer be our
political associates, but would, if need were, fight for a separation. It cannot
be alleged that they made any unfair use of advantages which our confidence, in
the time of our friendship, had placed in their power. Therefore they were not
traitors in fact: and consequently not traitors within the meaning of the
Constitution.

Furthermore, men are not traitors in fact, who take up arms against the
government, without having disavowed allegiance to it, provided they do it,
either to resist the usurpations of the government, or to resist what they
sincerely believe to be such usurpations. [*9]

It is a maxim of law that there can be no crime without a criminal intent.
And this maxim is as applicable to treason as to any other crime. For example,
our fathers were not traitors in fact, for resisting the British Crown, before
the fourth of July, 1776 --- that is, before they had thrown off allegiance to
him --- provided they honestly believed that they were simply defending their
rights against his usurpations. Even if they were mistaken in their law, that
mistake, if an innocent one, could not make them traitors in fact.

For the same reason, the Southern people, if they sincerely believed --- as
it has been extensively, if not generally, conceded, at the North, that they did
--- in the so-called constitutional theory of "State Rights," did not become
traitors in fact, by acting upon it; and consequently not traitors within the
meaning of the Constitution.

III.

The Constitution does not say who will become traitors, by "levying war
against the United States, or adhering to their enemies, giving them aid and
comfort."

It is, therefore, only by inference, or reasoning, that we can know who will
become traitors by these acts.

Certainly if Englishmen, Frenchmen, Austrians, or Italians, making no
professions of support or friendship to the United States, levy war against
them, or adhere to their enemies, giving them aid and comfort, they do not
thereby make themselves traitors, within the meaning of the Constitution; and
why? Solely because they would not be traitors in fact. Making no professions of
support or friendship, they would practice no treachery, deceit, or breach of
faith. But if they should voluntarily enter either the civil or military service
of the United States, and pledge fidelity to them, (without being naturalized,)
and should then betray the trusts reposed in them, either by turning their guns
against the United States, or by giving aid [*10] and comfort to their enemies,
they would be traitors in fact; and therefore traitors within the meaning of the
Constitution; and could be lawfully punished as such.

There is not, in the Constitution, a syllable that implies that persons, born
within the territorial limits of the United States, have allegiance imposed upon
them on account of their birth in the country, or that they will be judged by
any different rule, on the subject of treason, than persons of foreign birth.
And there is no power, in Congress, to add to, or alter, the language of the
Constitution, on this point, so as to make it more comprehensive than it now is.
Therefore treason in fact --- that is, actual treachery, deceit, or breach of
faith --- must be shown in the case of a native of the United States, equally as
in the case of a foreigner, before he can be said to be a traitor.

Congress have seen that the language of the Constitution was insufficient, of
itself to make a man a traitor --- on the ground of birth in this country ---
who levies war against the United States, but practices no treachery, deceit, or
breach of faith. They have, therefore --- although they had no constitutional
power to do so --- apparently attempted to enlarge the language of the
Constitution on this point. And they have enacted:

"That if any person or persons, owing allegiance to the United States of
America, shall levy war against them, or shall adhere to their enemies, giving
them aid and comfort, * * * such person or persons shall be adjudged guilty of
treason against the United States, and shall suffer death." --- Statute, April
30, 1790, Section 1.

It would be a sufficient answer to this enactment to say that it is utterly
unconstitutional, if its effect would be to make any man a traitor, who would
not have been one under the language of the Constitution alone.

The whole pith of the act lies in the words, "persons owing allegiance to the
United States." But this language really leaves the question where it was
before, for it does not attempt to [*11] show or declare who does "owe
allegiance to the United States;" although those who passed the act, no doubt
thought, or wished others to think, that allegiance was to be presumed (as is
done under other governments) against all born in this country, (unless possibly
slaves).

The Constitution itself, uses no such word as "allegiance," "sovereignty,"
"loyalty," "subject," or any other term, such as is used by other governments,
to signify the services, fidelity, obedience, or other duty, which the people
are assumed to owe to their government, regardless of their own will in the
matter. As the Constitution professes to rest wholly on consent, no one can owe
allegiance, service, obedience, or any other duty to it, or to the government
created by it, except with his own consent.

The word allegiance comes from the Latin words ad and ligo, signifying to
bind to. Thus a man under allegiance to a government, is a man bound to it; or
bound to yield it support and fidelity. And governments, founded otherwise than
on consent, hold that all persons born under them, are under allegiance to them;
that is, are bound to render them support, fidelity, and obedience; and are
traitors if they resist them.

But it is obvious that, in truth and in fact, no one but himself can bind any
one to support any government. And our Constitution admits this fact when it
concedes that it derives its authority wholly from the consent of the people.
And the word treason is to be understood in accordance with that idea.

It is conceded that a person of foreign birth comes under allegiance to our
government only by special voluntary contract. If a native has allegiance
imposed upon him, against his will, he is in a worse condition than the
foreigner; for the latter can do as he pleases about assuming that obligation.
The accepted interpretation of the Constitution, therefore, makes the foreigner
a free person, on this point, while it makes the native a slave.

The only difference --- if there be any --- between natives and foreigners,
in respect of allegiance, is, that a native has a right --- offered to him by
the Constitution --- to come under allegiance to [*12] the government, if be so
please; and thus. entitle himself to membership in the body politic. His
allegiance cannot be refused. Whereas a foreigner's allegiance can be refused,
if the government so please.

IV.

The Constitution certainly supposes that the crime of treason can be
committed only by man, as an individual. It would be very curious to see a man
indicted, convicted, or hanged, otherwise than as an individual; or accused of
having committed his treason otherwise than as an individual. And yet it is
clearly impossible that any one can be personally guilty of treason, can be a
traitor in fact, unless he, as an individual, has in some way voluntarily
pledged his faith and fidelity to the government. Certainly no man, or body of
men, could pledge it for him, without his consent; and no man, or body of men,
have any right to presume it against him, when he has not pledged it,
himself.

V.

It is plain, therefore, that if, when the Constitution says treason, it means
treason --- treason in fact, and nothing else --- there is no ground at all for
pretending that the Southern people have committed that crime. But if, on the
other hand, when the Constitution says treason, it means what the Czar and the
Kaiser mean by treason, then our government is, in principle, no better than
theirs; and has no claim whatever to be considered a free government.

VI.

One essential of a free government is that it rest wholly on voluntary
support. And one certain proof that a government is not free, is that it coerces
more or less persons to support it, against their will. All governments, the
worst on earth, and the [*13] most tyrannical on earth, are free governments to
that portion of the people who voluntarily support them. And all governments
though the best on earth in other respects --- are nevertheless tyrannies to
that portion of the people --- whether few or many --- who are compelled to
support them against their will. A government is like a church, or any other
institution, in these respects. There is no other criterion whatever, by which
to determine whether a government is a free one, or not, than the single one of
its depending, or not depending, solely on voluntary support.

VII.

No middle ground is possible on this subject. Either "taxation without
consent is robbery," or it is not. If it is not, then any number of men, who
choose, may at any time associate; call themselves a government; assume absolute
authority over all weaker than themselves; plunder them at will; and kill them
if they resist. If, on the other hand, taxation without consent is robbery, it
necessarily follows that every man who has not consented to be taxed, has the
same natural right to defend his property against a taxgatherer, that he has to
defend it against a highwayman.

VIII.

It is perhaps unnecessary to say that the principles of this argument are as
applicable to the State governments, as to the national one.

The opinions of the South, on the subjects of allegiance and treason, have
been equally erroneous with those of the North. The only difference between
them, has been, that the South has had that a man was (primarily) under
involuntary allegiance to the State government; while the North held that he was
(primarily) under a similar allegiance to the United States government; whereas,
in truth, he was under no involuntary allegiance to either. [*14]

IX.

Obviously there can be no law of treason more stringent than has now been
stated, consistently with political liberty. In the very nature of things there
can never be any liberty for the weaker party, on any other principle; and
political liberty always means liberty for the weaker party. It is only the
weaker party that is ever oppressed. The strong are always free by virtue of
their superior strength. So long as government is a mere contest as to which of
two parties shall rule the other, the weaker must always succumb. And whether
the contest be carried on with ballots or bullets, the principle is the same;
for under the theory of government now prevailing, the ballot either signifies a
bullet, or it signifies nothing. And no one can consistently use a ballot,
unless he intends to use a bullet, if the latter should be needed to insure
submission to the former.

X.

The practical difficulty with our government has been, that most of those who
have administered it, have taken it for granted that the Constitution, as it is
written, was a thing of no importance; that it neither said what it meant, nor
meant what it said; that it was gotten up by swindlers, (as many of its authors
doubtless were,) who said a great many good things, which they did not mean, and
meant a great many bad things, which they dared not say; that these men, under
the false pretence of a government resting on the consent of the whole people,
designed to entrap them into a government of a part; who should be powerful and
fraudulent enough to cheat the weaker portion out of all the good things that
were said, but not meant, and subject them to all the bad things that were
meant, but not said. And most of those who have administered the government,
have assumed that all these swindling intentions were to be carried into effect,
in the place of the written Constitution. Of all these swindles, the [*15]
treason swindle is the most flagitious. It is the most flagitious, because it is
equally flagitious, in principle, with any; and it includes all the others. It
is the instrumentality by which all the others are mode effective. A government
that can at pleasure accuse, shoot, and hang men, as traitors, for the one
general offence of refusing to surrender themselves and their property
unreservedly to its arbitrary will, can practice any and all special and
particular oppressions it pleases.

The result --- and a natural one --- has been that we have had governments,
State and national, devoted to nearly every grade and species of crime that
governments have ever practised upon their victims; and these crimes have
culminated in a war that has cost a million of lives; a war carried on, upon one
side, for chattel slavery, and on the other for political slavery; upon neither
for liberty, justice, or truth. And these crimes have been committed, and this
war waged, y men, and the descendants of men, who, less than a hundred years
ago, said that all men were equal, and could owe neither service to individuals,
nor allegiance to governments, except with their own consent.

XI.

No attempt or pretence, that was ever carried into practical operation
amongst civilized men --- unless possibly the pretence of a "Divine Right," on
the part of some, to govern and enslave others embodied so much of shameless
absurdity, falsehood, impudence, robbery, usurpation, tyranny, and villany of
every kind, as the attempt or pretence of establishing a government by consent,
and getting the actual consent of only so many as may be necessary to keep the
rest in subjection by force. Such a government is a mere conspiracy of the
strong against the weak. It no more rests on consent than does the worst
government on earth.

What substitute for their consent is offered to the weaker party, whose
rights are thus annihilated, struck out of existence, [*16] by the stronger?
Only this: Their consent is presumed! That is, these usurpers condescendingly
and graciously presume that those whom they enslave, consent to surrender their
all of life, liberty, and property into the hands of those who thus usurp
dominion over them! And it is pretended that this presumption of their consent
--- when no actual consent has been given --- is sufficient to save the rights
of the victims, and to justify the usurpers! As well might the highwayman
pretend to justify himself by presuming that the traveller consents to part with
his money. As well might the assassin justify himself by simply presuming that
his victim consents to part with his life. As well the holder of chattel slaves
to himself by presuming that they consent to his authority, and to the whips and
the robbery which he practises upon them. The presumption is simply a
presumption that the weaker party consent to be slaves.

Such is the presumption on which alone our government relies to justify the
power it maintains over its unwilling subjects. And it was to establish that
presumption as the inexorable and perpetual law of this country, that so much
money and blood have been expended.

NO TREASON.

No. VI.

_____________

The Constitution of no Authority.

_____________

BY LYSANDER SPOONER

_____________

BOSTON:

PUBLISHED BY THE AUTHOR,

1870.

___________________________________________________

Entered according to Act of congress, in the year 1870,

By LYSANDER SPOONER,

in the Clerk's office of the District Court of the United States, for the
District

of Massachusetts.

___________________________________________________

The first and second numbers of this series were published in 1867. For
reasons not necessary to be explained, the sixth is now published in advance of
the third, fourth, and fifth.

No Treason,
No. 6

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No. 6 ›

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